United States District Court, S.D. Illinois
G. WILKERSON UNITED STATES MAGISTRATE JUDGE
pending before the Court are the motion to compel and for
appointment of counsel (Doc. 40),  the motion for status (Doc.
46), the motion to amend complaint (Doc. 47), and the motion
for order (Doc. 50). The motion to compel is DENIED
in part and GRANTED in part (Doc. 40), the motion
for appointment of counsel is DENIED without
prejudice (Doc. 40), the Motion for Status is
DENIED with prejudice (Doc. 46), the Motion
to Amend Complaint is DENIED with prejudice
(Doc. 47), and the Motion for Order is DENIED without
prejudice (Doc. 50).
October 24, 2016, a Scheduling Order was entered setting
September 29, 2017 as the discovery deadline (Doc.
Plaintiff sought one extension of time on May 1, 2017 but was
informed that the discovery deadline was still almost four
months away (at that time), which would provide sufficient
time to complete discovery (Docs. 31 and 32). Defendants then
sought, and were granted, to July 10, 2017 to respond to
written discovery served on April 26, 2017 (Docs. 36 and 38).
When Plaintiff filed his first motion, on July 17, 2017, he
still had not received responses to his written discovery
requests (Doc. 39). By the time Plaintiff filed his second
motion, on August 7, 2017, he had received responses that
were mailed on July 10, 2107 and objections that were mailed
on July 11, 2017, the day of and the day after the deadline
set by the Court (which indicated that no further extensions
would be granted) (Doc. 40, pp. 8, 12, 17, 24, 31, 38, 43).
contends that the attorney for Defendants must have
back-dated the certificates of service because he did not
receive the objections and responses until July 17, 2017 or
July 22, 2017. He further states that Defendants have refused
to respond to the interrogatories and requests to produce and
have instead objected to a majority of them. Plaintiff
generally refers to his discovery requests but does not
specify, by number, which objections or responses are
inadequate. Plaintiff does not provide any argument as to why
additional responses should be compelled.
the timeliness of Defendants' objections to the written
discovery requests (that were mailed a day late) it is clear
from the discovery responses that both the responses and
objections were drafted contemporaneously. While the Court
does not approve tardiness, any failure to comply with the
Court's deadline by a day appears harmless and does not
appear to be a tactic to frustrate this litigation. Plaintiff
has identified no prejudice, specific to this case and
situation, that would warrant any further action on the
timeliness of the responses. The fact that Plaintiff may have
received the responses a week after they were mailed also
does not warrant any further action. There is no evidence
that the certificates of service are false or that Defendants
are responsible for delays in the mail. And, as an officer of
the Court, Defendants' counsel is presumed to be truthful
in each of the documents to which he signs his name, as
required by Federal Rule of Civil Procedure 11. At the time
the response/objections were received, Plaintiff still had
sufficient time to conduct additional discovery.
noted by Defendants, Plaintiff was limited to 15
interrogatories in the Scheduling Order and should have
sought permission prior to asking more than 15. Therefore,
Defendants' objections to the excessive number of
interrogatories are reasonable. The Court has reviewed
Defendants' responses and objections to Plaintiff's
first set of interrogatories and generally finds the answers
to be sufficient. However, Miner responded to interrogatory
11 by referring Plaintiff to a disciplinary report (Doc. 40,
p. 27). This answer is insufficient: a disciplinary report is
not the type of document contemplated by Federal Rule of
Civil Procedure 33(d) and is not a document made under
penalty of perjury. Interrogatory answers must be made
“under oath” and referring to a document that is
not an affidavit or a declaration is improper. Defendant
Miner shall supplement his response to interrogatory 11
within ten (10) days of the date of this Order.
the requests to produce, Plaintiff appears to seek all
internal affairs records and any video or photographs
depicting the area where he alleges he was assaulted by
staff. In response, Defendants state that no internal affairs
records exist, that no photographs exist, and that no videos
exist. These answers are sufficient. Defendants are not
required to produce material that does not exist and are not
required to create evidence (i.e to take photographs).
Plaintiff also seeks policies and protocols regarding IDOC
procedures for intervening in altercations between staff and
inmates. In this matter, Plaintiff is proceeding on one claim
of retaliation and one claim of excessive force. There is no
unconstitutional policy or practice claim in this lawsuit and
no claim of deliberate indifference to a medical need. There
also is no failure to intervene claim. Prison policies have
no bearing on whether Plaintiff's constitutional rights,
as alleged in this case, were violated. No further response
by Defendants is required. Plaintiff's motion to compel
is accordingly DENIED in part and GRANTED in
part, for the limited response as set forth above
request for recruitment of counsel is DENIED without
prejudice (Doc. 40). Plaintiff has no constitutional
nor statutory right to a Court-appointed attorney in this
matter. See Pruitt v. Mote, 503 F.3d 647, 649 (7th
Cir. 2007). However, 28 U.S.C. § 1915(e)(1) provides
that the Court “may request an attorney to represent
any person unable to afford counsel.” Prior to making
such a request, the Court must first determine whether
Plaintiff has made reasonable efforts to secure counsel
without Court intervention (or whether has he been
effectively prevented from doing so). Jackson v. County
of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). If he
has, then the Court next considers whether, “given the
difficulty of the case, [does] the plaintiff appear to be
competent to try it himself . . . .” Farmer v.
Haas, 990 F.2d 319, 321-322 (7th Cir. 1993);
Pruitt, 503 F.3d at 655 (“the question is
whether the difficulty of the case - factually and legally -
exceeds the particular plaintiff's capacity as a
layperson to coherently present it to the judge or jury
himself.”). In order to make such a determination, the
Court may consider, among other things, the complexity of the
issues presented and the Plaintiff's education, skill,
and experience as revealed by the record. Pruitt,
503 F.3d at 655-656. Ultimately, the Court must “take
account of all [relevant] evidence in the record” and
determine whether Plaintiff has the capacity to litigate this
matter without the assistance of counsel. Navejar v.
Iyiola, 718 F.3d 692, 696 (7th Cir. 2013).
has not met his threshold burden of demonstrating that he has
attempted to acquire counsel prior to seeking assistance from
the Court. Plaintiff may refile this motion provided that he
contact at least three attorneys, in writing, and seek
representation in this matter. Plaintiff shall attach any
letters he sends to or that he receives from these attorneys
in any future motion for recruitment of counsel. Plaintiff
also shall request recruitment of counsel using the form
approved by the Court, which shall be sent to Plaintiff by
the Clerk of Court along with a copy of this Order.
light of this Order, Plaintiff's motion for status is
DENIED (Doc. 46).
motion to amend the complaint is DENIED
(Doc. 47). Federal Rule of Civil Procedure 15 provides that
leave to amend should be freely given when justice so
requires. Leave may be denied, however, if there is undue
delay, futility, or prejudice. Life Plans, Inc. v.
Security Life of Denver Ins. Co., 800 F.3d 343, 357-358
(7th Cir. 2015). Local Rule 15.1 directs litigants to submit
a proposed amendment to a pleading along with a motion. No
proposed pleading was submitted by Plaintiff. Plaintiff also
has not explained why the Court should extend the February
27, 2017 deadline to amend the pleadings (Doc. 17, p. 3).
Plaintiff could have moved to amend his complaint prior to
the deadline, or at least seek an extension, but failed to do
so. See Bell v. Taylor, 827 F.3d 699, 705 (7th Cir.
2016) (finding that the district court did not abuse its
discretion in denying leave to amend 8 months after the
deadline). Allowing additional claims and parties to this
lawsuit will unnecessarily delay these proceedings further.
Finally, this motion is not construed as a motion to
reconsider the Order (Doc. 1) severing this matter from case
3:16-cv-102-SMY - a case in which Plaintiff presented similar
claims to the ones set forth in his motion.
light of these rulings and the other Orders entered in this
matter, Plaintiff final motion is DENIED without
prejudice (Doc. 50). The Court will determine
whether a hearing on Plaintiff's ...